John Glossop gave evidence in an unusual matter being Derrimut 247 Gym Pty Ltd v Port Phillip CC [2025] located in the FBURA. Notably no permit was triggered for the use of land or any other aspect with the appeal being against a ‘condition’ imposed on a consent letter Council issued that car parking was to its satisfaction under clause 52.06-6. The ‘condition’ sought to cap the patronage based on current on-street parking demand and the lack of set timeframe for the delivery of public transport infrastructure in the area. The Tribunal ultimately decided to delete the ‘condition’ with the decision of interest as to what the Tribunal considered in the context where no permit was required.
John also scored a second win last month in Ryley Wangaratta Pty Ltd v Wangaratta RCC [2025] VCAT 571 which concerned a rural service station. However, it was another rural service station that was one of three other decisions of interest last month being:
Lorenzo Business Park Pty Ltd v Horsham Rural CC [2025] VCAT 482 where the applicant sought to delete conditions from a permit requiring the provision of an acceleration lane from a service station onto the Western Highway. The permit applicant called two traffic witnesses both of whom considered that there was a) no need for the acceleration lane, and b) that its provision may in fact raise safety issues. The Tribunal, however, refused to delete the conditions stating:
26. We find significant weight must be given to the role of the Western Highway in the PFN and consequential need to ensure the efficiency and safety of the road network. The volume of 22 – 30% heavy vehicles is well above what would be travelling on most arterial roads in the metropolitan areas and, as noted by HTfV, eastbound freight will generally be fully loaded heading to Melbourne markets. This increased the potential severity if an incident occurs.
27. It is a fact that Ararat Roadhouse does not have an acceleration lane, and we accept that it appears to be operating satisfactorily. However, we also accept that conditions since that use was permitted have changed with a greater level of protection now being sought for the PFN to ensure that its efficiency is not eroded. We also note that the volume of traffic using the Ararat Roadhouse is lower than that anticipated at this site.
28. The gap analysis undertaken at the subject land by Mr Young was based on a single hour and made no allowance for traffic growth, which will reduce gaps over time, as well as the randomness of traffic flows. It also did not consider the impact of vehicles turning right out of the site absorbing some of the gaps, nor vehicles slowing to turn into the site at the entry to the west.
29. We agree that, when there are sufficient gaps, drivers will be more likely to turn into the traffic lane rather than use the acceleration lane, however, the acceleration lane will become more used as gaps reduce. The acceleration lane will also allow vehicles to move out of the way of other vehicles should they have misjudged the gap required, noting advice that the existing shoulder is narrow.
30. In terms of speed, we note that traffic is speeding up having left the Horsham township and is heading into open country. While the 80 km/h speed zone ends just before the subject land, the speed data shows that cars passing the site have an 85th percentile speed of 106.8 km/h for eastbound traffic. While some cars are travelling slower, this shows the acceleration occurring before the site exit, which can make it more difficult for entering traffic to accurately determine the required gap.
31. We are not persuaded that the acceleration lane will have an adverse impact on safety, It will make the roadside more ‘forgiving’ by giving drivers the ability to use the lane to accelerate if they choose an insufficient gap for any reason, to reduce the impact. It will also simply shift the conflict point for that vehicle.
Kostandinov Investment Pty Ltd v Merri-bek CC [2025] VCAT 494 was also a condition appeal this time against the provision of external shading devices on a townhouse development. The proposal achieved (exceeded) a 50% BESS score, yet as so often is the case (at least in my view) achieving 50% seems to be the starting point as opposed to an end point with a long list of further ‘musts’ often subsequently sought. In this matter, the Tribunal found:
22. Council submits that the proposal to removal the external shading devices do not meet the specific strategy relating to energy performance on the basis that shading to glazed surfaces is a specific strategy included within clause 15.01-2L-05.
23. I am persuaded by the applicant’s submission that the solution to achieving best practice of ESD is a combination of methods. The external screens may not be the only option to achieve energy performance and internal amenity for the future occupants of the dwellings. I read the strategies as options, not mandates.
24. However, the information provided by the applicant in relation to the NatHers assessment shows that the cooling loads for dwelling 1 is significant. This is due to its north and west orientation.
25. Given the challenge for this dwelling to achieve comfortable living conditions during the summer, I find that the external screens for this dwelling should be retained however find that the removal of the screens for dwellings 2 to 5 can be supported.
Pepe Corporation Pty Ltd v Melbourne CC [2025] VCAT 511 concerned an objector appeal against Council’s decision to allow an increase in students and staff to an education centre operating from one level of a multi-storey building. Being a capital city location, that Council was willing to accept a reduction to zero of the additional car parking demand generated is of no surprise. However, the Tribunal refused the grant of an amended permit on the basis it was unable to as no Car Parking Demand Assessment had been provided. The Tribunal stated:
62. The Applicant submits the amendment application contains no Car Parking Demand Assessment as is required by clause 52.06, so the Tribunal is invited to refuse this planning permission. The Applicant referred to the beginning of clause 52.06-7 as follows:…
63. The language of this clause is quite clear:
a. The first sentence states an application to reduce the required car spaces ‘must be accompanied by a Car Parking Demand Assessment’;
b. The second sentence identifies the Car Parking Demand Assessment must assess the car parking demand generated by the proposed increase to a new use or the proposed increase to an existing use by the measure specified in column C of Table 1 in clause 52.06-5 for that use. The car parking measure in Table 1 for an education centre land use is ‘to each student that is part of the maximum number of students on the site at any time’; and
c. The Car Parking Demand Assessment ‘must address the following matters to the satisfaction of the responsible authority’. The clause then lists 8 matters to be addressed to Council’s satisfaction.
64. During the hearing, Council referred to the letter that accompanied the amendment application as fulfilling the clause 52.06-7 requirement. However, in reviewing this during the hearing, Council acknowledged the letter does no more than quote the car parking considerations in the Council delegate report for the original planning permit application for level 7’s education centre. These considerations included referrals to, and no objection from, Council’s traffic engineering team and Transport for Victoria. Council advises no referrals were done as part of this amendment application.
65. The Respondent permit applicant advises a traffic engineering assessment was submitted with the original planning permit application that considered 85 students and 5 staff. However, this assessment does not form part of this amendment application, and it does not accord with the 110 students and 8 staff contained in this amendment application. Furthermore, the numbers in this assessment do not accord with number of students and staff that are being supported by Council in this case.
66. The Applicant is correct that a Car Parking Demand Assessment is required. Whilst the content of that Assessment can be discretionary, the need to provide one is not discretionary. For this reason and the fact that none of the previous traffic engineering consideration for the original permit application is relevant to the amendment application’s proposed student and staff numbers, I am not persuaded this planning permission can be granted approval at this time.
If Glossop Town Planning can be of any assistance with any VCAT matters, please contact either Hew (advocacy) or John (expert evidence) to discuss.
